Bench Memos

Law & the Courts

AAG Kristen Clarke Wallops Joe Manchin

No naïve deed goes unpunished. So it is that less than a month after Senator Joe Manchin of West Virginia voted to confirm the controversial nomination of Kristen M. Clarke as Assistant Attorney General for DOJ’s Office of Civil Rights, Clarke has filed a brief for the Biden administration arguing that a West Virginia law that bars boys from participating on girls’ sports teams violates Title VI and the Equal Protection Clause.

Specifically, Clarke’s brief in B.P.J. v. West Virginia State Board of Education contends that the West Virginia law cannot apply to boys who identify as girls. Except, of course, transgender newspeak prevents Clarke from speaking forthrightly. Instead, the DOJ brief insists that the 11-year-old biological male who wants to try out for Bridgeport Middle School’s girls’ cross-country and track teams “is a girl.” Indeed, the brief complains that the West Virginia law “restricts girls who are transgender”—i.e., boys who identify as girls—“from participating on girls’ teams.”

On this wordplay, the brief contends that the West Virginia law “targets girls who are transgender.” But it is Clarke who is seeking to require West Virginia to discriminate—to define eligibility for girls’ sports—on the basis of gender identity. By instead defining eligibility on the basis of biological sex, the West Virginia law disregards, and thus patently does not discriminate on the basis of, gender identity.

To be sure, Clarke’s brief draws support from the Fourth Circuit’s misguided decision in Grimm v. Gloucester County School Board. The Supreme Court is scheduled to consider Gloucester County’s certiorari petition at its conference this Thursday. The many cases like B.P.J. demonstrate that it is important that the Court grant certiorari in the Gloucester County case to protect the ability of states and school boards to exercise their best judgment on how to address the broad range of questions posed by students who identify as transgender.

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